Rick Prelinger says,
Unfortunately, we've lost again.
In this appeal (passionately argued by Larry Lessig) we hoped to establish that "the change from an "opt-in" to an "opt-out" copyright system altered a traditional contour of copyright." A successful appeal would have opened uncountable orphaned works (especially books and films) to unrestricted public use.
The 9th Circuit disagreed and affirmed the District Court's decision, saying "The Supreme Court has already effectively addressed and denied Plaintiffs' arguments" in Eric Eldred's case.
Both the Internet Archive and the Prelinger Library will continue to digitize public domain materials and make them available online for free.